Blog: Why Detention for Immigrants, Especially Immigrant Families, Must End

Carolyn Burstein

May 27, 2015

“Unlocking Human Dignity: A Plan to Transform the U.S. Immigrant Detention System,” a new scathing joint report from the Migration and Refugee Services/United States Conference of Catholic Bishops (USCCB) and the Center for Migration Studies (CMS), speaks of the baleful effects of immigrant detention on the lives of persons who pose no threat or danger, but are treated like criminals.

The report is filled with troubling facts uncovered through onsite visits, an extensive review of past publications, and an unvarnished examination of the current system. For example, did you know that the number of persons detained annually increased from roughly 85,000 in 1995 to over 440,500 in 2013?

Now that’s a radical expansion, and the number of detention centers has expanded as well, costing taxpayers more than $2 billion annually. As the report itself indicates, those “numbers only hint at the toll that this system exacts in despair, fractured families, human rights violations, abandoned legal claims, and diminished national prestige.”

The current detention system is a sprawling hodgepodge of facilities, consisting of state and county jails, privately-run for-profit prisons, Bureau of Prison facilities, Border Patrol holding cells, and even “service processing centers” administered by the Department of Homeland Security (DHS). Detained immigrants in these facilities often receive worse treatment and fewer protections than criminals serving prison sentences. Numerous reports have described the many problems that exist in a system where standards are not codified and independent oversight is lacking: poor or nonexistent health services; the misuse of segregation; physical, emotional and sexual abuse; women forced to deliver babies in restraints; frequent hunger strikes; restrictions on visitation; violence and discrimination against gay, lesbian and bisexual persons; problems related to due process, legal access and religious expression – among many others.

The situation is even worse where children are involved. A February report by “Detention Watch Network” notes that studies by the bipartisan U.S. Commission on International Religious Freedom, New York University’s Bellevue Program for Survivors of Torture, and Physicians for Human Rights conclude that detention is psychologically damaging and completely inappropriate for children because it aggravates isolation, depression and mental health problems associated with past trauma. Onsite visits by members of the “Detention Watch Network” have also shown that children as young as eight months wore prison uniforms, lived and slept in locked prison cells with open-air toilets, and families were subject to highly restricted movement and threatened with family separation if children cried or played too loudly.

Since 2009, Congress has mandated that DHS maintain at least 33,400 detention beds, known ever since as the “detention bed quota.” And many members of Congress interpret this mandate as requiring DHS to fill that many beds each night. The current DHS Secretary, Jeh Johnson, has testified that he interprets this language to require that DHS maintain 34,400 beds, not detain 34,400 persons every night. Yet, nothing has changed at the detention level.

Another major problem (there are so many, it is difficult to enumerate all of them) is an overreliance on for-profit, privately-run detention centers. These have burgeoned over time, just as they have in the correctional system, so that by 2015, “for-profit prison corporations administered nine of the nation’s ten largest immigrant detention centers” (USCCB/CMS report). There is a plethora of studies to demonstrate that for-profit agencies strive to maximize profits for their shareholders, spend exorbitant funds on lobbying both federal and state legislators for their own causes, and spend millions on campaigns. However, the USCCB/CMS report claims that the real culprit is DHS’s lack of oversight expertise to assess performance under the contracts and a lack of data collection needed to address any deficiencies in the system.

As a May 19 editorial in the Seattle Times forthrightly indicates, “the immigration system is distorted by partisanship, xenophobia, conflicted guidance and pressure from companies that are paid a fortune to run detention centers…”

The New York Times Editorial Board pointed out on May 15 that the immigrant detention system has become an enormous funnel for the overburdened and underfunded immigration courts, which receive a meager $300 million from Congress each year, only one-sixtieth of what Immigration and Customs Enforcement (ICE) and Border Patrol (BP) receive. More than 400,000 cases were pending before immigration judges at the end of March 2015, with an average case waiting 599 days to be heard. This hardly constitutes due process for immigrants.

In addition, immigrant detention has been employed as part of a broader enforcement strategy to prevent refugees and other migrants who are fleeing violence from reaching U.S. protection. Not only is this unconscionable, but it has also been, at times, counterproductive. As Pope Benedict said in 2007, immigration and protection policies must serve the human person, not treat the human person as a means to an end.

However, the paramount concern of the USCCB/CMS report is different than any particular deficiency. Central to the issue is the fact that detention is treated as a pillar of immigration enforcement and is the major management tool in the Department of Homeland Security’s (DHS) toolkit. Detention, in its layout, construction, staffing plans and management strategies operates like a prison system and is based on traditional prison principles of command and control. But this so-called correctional system operates without the same level of professionalism and proficiency expected of a correctional system, which has to uphold numerous minimum standards of treatment. Yet the only purpose of detention is to ensure that noncitizens appear for court proceedings.

The USCCB/CMS report points out that the purpose of detention would be accomplished by supervised release with case management and community-based support services in most cases – and calls for the least restrictive conditions placed on others where it is required. The report highlights the fact that American Bar Association (ABA) standards and guidelines of the past few years also support using alternatives to detention to transform the immigrant detention system.

The USCCB/CMS report notes that DHS’s own 2014 data show that between fiscal years 2011 and 2013, the two programs they operate using alternatives to detention yielded an appearance rate of 99% at court hearings and 95% at final removal court hearings. These data clearly demonstrate that detention is not only hurtful to the recipients but unnecessary, and wasteful of scarce resources.

Although the Obama administration’s reforms since 2009 have been humane and made notable differences in the lives of many detainees, too many of these reforms have been incremental in nature and avoided the major issue of detention per se. The high costs and human rights abuses will continue without the fundamental change that the USCCB/CMS report advances.

It is important to support the recommendations of the USCCB/CMS report, especially the replacement of detention with an expansion of all types of less restrictive alternatives to ensure appearances, as well as increasing the funding for immigration courts by an order of magnitude. In the meantime, we support curtailing and rigorously monitoring all for-profit facilities. Our biblical tradition recognizes the right to migrate in response to war, human rights abuses and extreme poverty. As the bishops’ introduction letter to the USCCB/CMS report indicates, migrants fall within every marginal group who deserve assistance – those who are hungry, thirsty, stranger, naked, ill and imprisoned.